Petitioner
Orville C. Massey, Jr., pro se, appeals the August 5, 2016,
order of the Circuit Court of Fayette County denying a
petition for a writ of habeas corpus in which petitioner
requested an immediate discharge from custody due to alleged
cruel and unusual punishment. Respondent Patrick A. Mirandy,
Warden, St. Marys Correctional Center, [1] by counsel John
H. Boothroyd, filed a summary response in support of the
circuit court's order. Petitioner filed a reply.

The
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Petitioner
is an elderly inmate in the custody of the West Virginia
Division of Corrections ("DOC").[2] On July 11, 2016,
petitioner filed a petition for a writ of habeas corpus in
which he requested an immediate discharge from the DOC's
custody due to alleged cruel and unusual punishment. As
grounds for his request, petitioner alleged that he had
either nerve damage or a degenerative hip joint and that the
DOC's medical contractor's deliberate indifference to
his serious medical need constituted cruel and unusual
punishment. As an alternative to immediate release,
petitioner requested a referral to an outside specialist.
Petitioner attached a May 2, 2016, grievance to his petition,
which was subsequently denied by the DOC, in which he claimed
that there was "a [n]erve problem" and requested a
MRI as well as "a [wheelchair] to take me to the chow
hall."

By
order entered on August 5, 2016, the circuit court denied
petitioner's petition. The circuit court determined that
there was no deliberate indifference to petitioner's
serious medical need based on a full review of "the
complete contents of the court file." The circuit court
found that petitioner acknowledged the following: (1) that a
doctor told him that his hip joint was normal following a
x-ray of his leg; (2) that medical staff proscribed Mobic, a
drug used to treat arthritis; (3) that medical staff gave him
a cane to aid him in walking; and (4) that medical staff
offered petitioner a walker that he declined to use.
Accordingly, the circuit court concluded that petitioner was
receiving treatment for his complaints and that his mere
disagreement with the prescribed course of treatment did not
justify the requested relief. Subsequent to the August 19,
2016, filing of petitioner's appeal from the circuit
court's denial of his petition, the DOC transferred
petitioner from Mount Olive Correctional Complex to St. Marys
Correctional Center, a facility designated to house inmates
who are "[r]eviewed/[a]pproved for [medical]
placement" and "[g]eriatric inmates determined to
be appropriate for dormitory living." DOC Policy
Directive 401.01 §§ V(C)(4)(b) and (c).

Petitioner
now appeals from the circuit court's August 5, 2016,
order denying his habeas petition. We apply the following
standard of review in habeas cases:

In reviewing challenges to the findings and conclusions of
the circuit court in a habeas corpus action, we apply a
three-prong standard of review. We review the final order and
the ultimate disposition under an abuse of discretion
standard; the underlying factual findings under a clearly
erroneous standard; and questions of law are subject to a
de novo review.

4. Deliberate indifference to the serious medical needs of
prisoners constitutes unnecessary and wanton infliction of
pain which is proscribed by the prohibition on cruel and
unusual punishment in the Federal and State Constitutions.

5. To establish that a health care provider's actions
constitute deliberate indifference to a prison inmate's
serious medical need, the treatment, or lack thereof, must be
so grossly incompetent, inadequate, or excessive as to shock
the conscience or be intolerable to fundamental fairness.

On
appeal, petitioner alleges that his request for a MRI was
denied because of the cost. We find that the record belies
petitioner's allegation. According to the response
section of the May 2, 2016, grievance form, an MRI was not
ordered because the physician who examined petitioner on that
same day concluded that "[an] MRI was not indicated,
" which was explained to petitioner during the
examination. As found by the circuit court, petitioner
previously had a x-ray of his left leg that showed that his
hip joint was normal. Because an MRI was not indicated, the
denial of petitioner's request for one did not constitute
deliberate indifference under syllabus point 5 of
Nobles. See United States v. DeCologero,
821 F.2d 39, 42 (1st Cir. 1987) (stating that,
"though it is plain that an inmate deserves
adequate medical care, he cannot insist that his
institutional host provide him with the most sophisticated
care that money can buy").

Respondent
argues that the DOC has provided petitioner with adequate
medical care. We agree. While petitioner claimed in the May
2, 2016, grievance that he had a nerve problem, that
complaint was likewise answered by the registered nurse who
responded to his grievance. The nurse stated that she
reviewed petitioner's medical records and that he
"[did] not have signs of nerve problems" in his
left leg. The nurse also denied petitioner's request that
he be permitted to use a wheelchair. However, petitioner
acknowledged in his grievance that the medical staff at Mount
Olive gave him a cane to aid him in walking, offered him a
walker, which he declined to use. On appeal, petitioner
further concedes that since his transfer to St. Marys, he has
been allowed the use of a wheelchair.[3]Therefore, we find that
there has been no deliberate indifference to petitioner's
serious medical need. Accordingly, we conclude that the
circuit court did not abuse its discretion in denying
petitioner's habeas petition in which he requested an
immediate discharge from custody or, in the alternative, a
referral to an outside medical specialist.

For the
foregoing reasons, we affirm the circuit court's August
5, 2016, order denying petitioner's ...

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